The Shape of Things to Come
Welcome to Volume 5, Issue 1 of McCarthy Tétrault Co-Counsel: Litigation. This publication not only highlights legal developments, but also offers the insights of our litigation group to each of the cases in the periodical.We believe this insight makes this a reflective journal that points to important trends for the future, and "looking to the future" is a major skill set our lawyers bring to everything they do.

Not Always Mandatory: in Seidel v. TELUS Communications, the Supreme Court of Canada Allows Exceptions to a Mandatory Arbitration Agreement
Are mandatory arbitration agreements an effective bar to consumer class proceedings in common law jurisdictions? In reasons released in March 2011, a bare majority of the Supreme Court of Canada expressed concerns about the access to justice offered by private arbitrations, and held that, in a proposed class action, a mandatory arbitration agreement in a consumer contract was unenforceable regarding rights and benefits conferred by consumer protection legislation, but enforceable regarding other claims. A strong dissent held that the entire dispute was required to be resolved by arbitration, in accordance with the parties’ mandatory arbitration agreement, and confirmed that access to justice is fully preserved in private arbitration.

Canada Trustco Mortgage Co. v. Canada: Focus on Financial Institutions
It is not often that the Supreme Court of Canada grants leave to appeal a decision relating to the Income Tax Act or the law relating to how cheques are processed and paid. It is even less common when both the trial and appellate courts were in agreement. Canada Trustco Mortgage Co. v.Canada is one of those rare cases and should be of interest to financial institutions that are involved with the processing and payment of cheques.

Re Indalex Limited: A Question of Priorities
The Ontario Court of Appeal’s decision in Re Indalex Limited in April has raised a number of questions about the strength of secured creditors’ interests, and the scope of an employer’s duty as administrator of a pension plan under the Companies’ Creditors Arrangement Act. This article focuses on the decision’s pension law implications for employers. While the decision is generally unfavourable for employers, the silver lining may be that the particular facts influencing the decision could limit its future application.

Issues of Privilege: Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP
The decision of the Alberta Court of Queen’s Bench in Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP addressed a variety of issues respecting the assertion of privilege by the respondents, Ghost Pine Windfarm, LP and Fortuna GP Inc. (collectively, Ghost Pine), over redacted portions of otherwise producible documents and, in particular, the redacted portions of an Asset Purchase Agreement. An application was brought by the applicant Scott & Associates Engineering Ltd., challenging the validity of such redactions, and it was argued that even if the privilege claimed was proper, such privilege was displaced due to the operation of the fraud exception to privilege, and because Ghost Pine’s state of mind was at issue.

Materiality in Securities Legislation: Guidance From the Supreme Court of Canada Imposes Burdens on Both Plaintiffs and Issuers
Until now, there has been little judicial guidance on how much or how little an issuer of securities should disclose in order to comply with securities law. In Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23, the Supreme Court of Canada has provided such guidance by examining the test of what constitutes a "material false statement" under securities statutes. The result is to place burdens both on plaintiffs, who claim that there has been a misstatement, and on issuers to get the level of disclosure right.

Humpty Dumpty’s Views
In Through the Looking Glass, Humpty Dumpty was of the view that the meaning of a word was what he said it meant. "When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean — neither more nor less.""The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master — that’s all."

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Every effort has been made to ensure the accuracy and timeliness of this publication, but the comments are necessarily of a general nature. Clients are urged to seek specific advice on matters of concern and not to rely solely on the text of this publication.